Death penalty is costly, capricious

TALLAHASSEE -- The Florida Supreme Court spends about half its time on the tiny fraction of its cases that involve the death penalty. Knowing this, some legislators offered competing proposals last year to "help" the court, either by expanding the bench from seven seats to nine or by creating a separate supreme court just for criminal appeals.

What they really wanted was to change the outcomes of those death cases that pile up in Tallahassee, so that more inmates would die, and die faster.

Cooler heads deflected the court-wrecking schemes by creating a Supreme Court Workload Commission, which was expected to report, as in fact it recently did, that there is no good use for either "reform."

A larger Supreme Court would slow things down, not speed them up. Nine people need more time to argue and exchange draft opinions than seven do. As for the other, two courts of last resort would bring utter confusion to the rules of evidence. Florida does not need a "death court" like the Texas Court of Criminal Appeals unless we really wish to execute someone without caring that his lawyer slept senseless through long segments of the trial. The Texas death court is probably the single most important reason why Texas executes more people than Florida even though Florida has sent more to death row.

Florida justice, if still imperfect, is significantly more sensitive to such values as innocence, due process and proportionality. We should thank the Florida courts for that, considering that when the wrong person is put to death in society's name we are all as guilty of his murder as those we employed to stick the poison in his veins.

Having disposed of the court-wrecking schemes, the workload commission had a harder time coming to grips with what would truly mitigate the Supreme Court workload: Send it fewer death cases to begin with.

There would be many fewer if Florida weren't the only state that allows judges to impose the death penalty without a unanimous recommendation from the jury.

Florida has even put people to death when juries have voted for life. The Supreme Court has pretty much put a stop to that.

But the commission voted down, 6-to-3, a recommendation that the law require either a unanimous or super-majority recommendation before death is imposed.

It was poignant that the sponsor was Robert Shevin, a judge of the 3rd District Court of Appeals, who was attorney general when Florida's present death penalty was enacted in December 1972. Shevin strongly and successfully defended the law on appeal, but time has persuaded him that it gave too much discretion to judges. Shevin was particularly pained at the mention of Earnest Dobbert, a Jacksonville man executed in 1984 for what some jurors said they believed was the unintentional killing of his son. They voted 10-2 to spare him, but he died after 10 years of legal wrangling. That, said Shevin sorrowfully, "was unfortunate."

After defeating Shevin's motion, the commission voted unanimously to tell the Legislature -- but without recommendation -- that it believes that requiring a unanimous or supermajority recommendation would reduce the court's workload. The Legislature, it said, might want to study this further.

That was, of course, merely a restatement of something as obvious as the sun rising in the east. All the same, this is probably the last you'll hear of it. To the Florida Legislature, the death penalty is holy writ. Even intelligent questions are discouraged because nothing will come out of them except raw material for campaign opposition research.

This is how obvious it is: There were 21 new death sentences imposed in Florida last year, according to Michael Radelet, a University of Florida sociologist who maintains a data base. In only two did the juries unanimously recommend death. Two others had been sentenced without juries. In only seven of the other cases were there as many as 10 jurors for death. So requiring at least a 10-2 vote would ultimately cut the Supreme Court's death docket by half.

(Significantly, those 21 new death cases are the fewest for any year since 1972. Juries seem to have caught on to a 1994 law providing life without parole as the only alternative to death for first-degree murder.)

Moreover, Radelet's data shows that the more jurors who vote for death, the more likely the court will sustain the conviction and sentence on direct appeal. It upheld nearly two-thirds of the 124 with unanimous juries, but less than half where the split was 7-5 and barely half when juries voted 8-4 or even 9-3.

The Legislature is fiscally as well as morally irresponsible if it doesn't face up to the implications. There were 856 first-degree murders in 1999, 741 arrests, more than 1,000 convictions for all degrees of murder and manslaughter combined, yet only 21 death sentences. That suggests the death penalty is nothing but a costly, capricious symbolism which serves no purpose -- other than to enable politicians to posture about it -- that couldn't be served just as well at much less expense by simply throwing away the keys.